In order to file a medical malpractice claim, plaintiffs in New Jersey must submit an affidavit of merit from a board-certified medical professional with expertise in the medical procedure at issue attesting that the care provided by the defendant fell outside acceptable professional standards. The law ensures that physicians are being justly accused of wrongdoing, so it is critical that courts carefully and consistently enforce it.


In David R. Austin v. Edwin Deitch, M.D., Appellate Judges Fuentes and Koblitz upheld the lower court’s finding that plaintiff’s expert, a board certified internist and cardiologist, was not competent to testify as an expert in the case. The court explained that Deitch is board certified as a surgeon and the plaintiff’s proposed expert was not, therefore the expert’s opinion regarding Deitch’s alleged malpractice would be inadmissible. (Basically board certified internist/cardiologist ≠ board certified surgeon.)


The Deitch decision is an indication that the courts are taking seriously the threat that frivolous litigation poses to our state’s healthcare system. NJCJI will continue to monitor cases involving affidavits of merit to determine if the courts will continue to stay true to the statute or whether additional legislation is needed to protect our state’s doctors from meritless claims.